Category Archives: Public Interest Litigation

The Right to be Cold: Global Warming and Human Rights (M. Wagner)

Author(s)

Martin Wagner

Keywords

Climate Change, Human Rights, Indigenous People, Inuit, The Right to Be Cold, Cultural Rights

Excerpt

The relationship between global warming and human rights is something that is beginning to be talked about now, but six or seven years ago no-one had made the connection.  I am going to explore the relationship through the context of some work I have done with the Inuit people of the Arctic regions of the world, and in particular a case that I have brought on their behalf. I want you to remember that this connection between global warming and human rights is not limited by any means to the people of the Arctic; there are potential human rights implications of global warming everywhere around the world.
{…]
So you have the Inuit culture that depends on the ice, snow and cold and you have the effects of global warming in the Arctic. It all raises the question: Is there a human right to be cold? Or to make it more global, is there a human right, for example, to be dry? Let me explain about why I think there is a connection between human rights and global warming. The first thing to remember is that international law and the international community recognise a special place for indigenous people in the community of nations and the special responsibility of nations. But in particular, international human rights recognises that there is a connection between indigenous people and the territory that they occupy and depend on for their livelihood and for their culture that is special and it needs to be
maintained and protected. That is relevant because many of the most vulnerable communities that are being affected first by global warming are indigenous communities.

Citation

(2007) in Human Rights 2007, The Year in Review, Smith and Contini (Eds) (Monash Castan Centre for Human Rights Law, 2008)

Paper

The Right to be Cold: Global Warming and Human Rights (Pre-Publication Conference Paper)

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Gandhi’s Nightmare: Bhopal and the Need for a Mindful Jurisprudence (N. A. Patel, K. Petlakh)

Authors

Nehal A. Patel and Ksenia Petlakh

Keywords

mindful, legal theory, non-western, Gandhi, jurisprudence, transnational, international, human rights, environment, corporation, industrial

Abstract

For decades, activists and academics have been lamenting the disparate impact of global environmental decay on populations less endowed with legal resources. However, the implicit biases of legal theory itself remain unchallenged even when global resource disparities are addressed. Little attention has been given in transnational jurisprudence to how the thought sub structures of modern legal theory contain dispositions that advantage privileged interests and hamper transnational environmental justice efforts.

How can transnational jurisprudence change to become more mindful of the environmental impacts disproportionately experienced by the disempowered, and what conception of global society shall the law embody such that it earns the voluntary submission of the people? We explore these questions with a speculation on how Gandhi’s thought applies to transnational environmental jurisprudence. Gandhi’s thought contains four components that contain the necessary ingredients to evaluate the dominant frames that debilitate global environmental justice efforts. First, Gandhi presented his own construction of the individual’s relationship to the physical and social environments. Second, Gandhi’s thought defines the relationships between societies in a way that is free of Western assumptions of global governance. Third, his thought contains a critique of industrialization and presents a powerful alternative. Fourth, his thought contains a reconstruction of the purpose and function of law and legal systems for a world in which “progress” includes social equality and environmental protection. Comprehensively, Gandhi’s thought reinvigorates a decayed relationship between global environmental justice and transnational environmental jurisprudence by simultaneously redefining the human-environment relationship, legal theory, and dominant Western assumptions of the relationships between nations.

We directly apply Gandhi’s thought to the case law that resulted from the Bhopal chemical disaster, which is widely considered the worst industrial disaster in world history. Applying Gandhi’s thought to the Bhopal cases is useful for two reasons. First, the Bhopal cases contain several core legal doctrines that appear regularly in transnational cases. Second, there is a profound power imbalance between the civilians and the corporation that highlights the case’s relevance to global environmental justice. Through our analysis of the legal principles and the parties’ arguments in this case law, we illustrate our conception of a mindful jurisprudence of the transnational environment.

Citation

N. A. Patel and K. Petlakh, Gandhi’s Nightmare: Bhopal and the Need for a Mindful Jurisprudence (2014) Vol. 30, Harvard Journal on Racial & Ethnic Justice

Paper

Gandhi’s Nightmare: Bhopal and the Need for a Mindful Jurisprudence

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Fundamentalism in Public Health and Safety in Bilateral Investment Treaties (K. Yelpaala)

Author

Kojo Yelpaala

Keywords

Bilateral investment treaties, constitutional rights, fundamental rights, public health and safety, humanrights, environment, prisoner’s dilemma, bilateral unilateralism, jus cogens, arbitrability, indirect expropriation, state responsibility

Abstract

The goal of this work is to explore, examine and analyze how much of an impact BITs can lawfully have on the choices available to governments to take necessary measures for the protection of health, safety, the environment and humanrights. This calls for a return to first principles of sovereignty, constitutionalism and international law on the issues of sovereign authority with respect to domestic policy relating to security and other critical social policies. Any interpretation of the substantive content or the restraining effects of BITs must be framed against the backdrop of these first principles. Although the cases are still too few for any concrete statements to be made about the restraining impact of investment protection provisions on contracting States, there appears to be some suggestion of a serious policy chill on contracting States. In view of this, it appears useful to explore avenues of empowering States, particularly the weaker States, with regards to their obligations under current BITs. In conclusion, a State owes certain indelible duties to its citizens which it may not be surrendered or abandoned in a treaty for private profit. The State has the duty to protect its citizens not only from a hostile force but also from threats to their right to life, habitation, health and safety. Such responsibilities of the State may be said to be indelible, inherent and cannot be waived or surrendered in a treaty.

Citation

(2008) 3 Asian Journal of WTO & International Health Law and Policy 235

Paper

Fundamentalism in Public Health and Safety in Bilateral Investment Treaties [Part I]

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Public interest litigation concerning environmental matters before human rights courts…(C. Schall)

Author

Christian Schall

Keywords

Environment; European Court of HumanRights; humanrights; locus standi (standing); access to justice; Aarhus Convention; public interest.

Abstract

This article endeavours to explain the current state of environmental public interest litigation before the three regional humanrights bodies of Europe, America and Africa in the light of their constituting treaties and case law. It assesses the likely impact of the Aarhus Convention and the changing national jurisdictions on the procedural but also on the substantive rights guaranteed by these bodies. It also assesses the chances of reform to broaden access to justice in environmental matters in the European humanrights system. It argues that, although national and international jurisdictions generally point towards broader access to justice, the legal systems currently employed by the European and Inter-American humanrights institutions are not apt for a concept of public interest litigation.

Citation

(2008) 20(3) Journal of Environmental Law, 417-453.

Paper

Public interest litigation concerning environmental matters before human rights courts: a promising future concept?

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The European Convention on Human Rights and Environmental Nuisances (S. Praduroux)

Author

Sabrina Praduroux.

Keywords

Environmental policy; nuisance; peaceful enjoyment of possessions; pollution; proportionality; right to fair trial; right to respect for home.

Abstract

Examines whether environmental nuisances can infringe humanrights, particularly the right to respect for one’s home under the European Convention on HumanRights 1950 art.8 and the right to peaceful enjoyment of possessions under Protocol 1 art.1. Outlines the approach of the European Court of HumanRights. Considers whether either right is a civil right and therefore invokes the protection of art.6. Asks whether states have a positive obligation to protect individuals from environmental nuisance. Assesses the Court’s approach to challenging national environment policies and to proportionality.

Citation

(2008) 16(2) European Review of Private Law, 269-281.

Paper

The European Convention on HumanRights and Environmental Nuisances.

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